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Posts Categorized: Contracts

Posted: February 13, 2014

Agreement Not Unconscionable Because it Was Not One Only a Delusional Party Would Make

On February 11, 2014, the First Department issued a decision in B.D. Estate Planning Corp. v. Trachtenberg, 2014 NY Slip Op. 00889, granting the plaintiff summary judgment on the defendant’s defense that an agreement was unconscionable. In B.D. Estate Planning Corp., the First Department affirmed the trial court’s dismissal of the defendant’s unconscionability defense, explaining: At common... Read more »

Posted: February 4, 2014

Landlord’s Alleged Role in Frustrating Achievement of Contract’s Purpose Allows Claim for Breach of Duty of Good Faith and Fair Dealing to Survive Motion to Dismiss

On January 22, 2014, Justice Kornreich of the New York County Commercial Division issued a decision in Gelita, LLC v. 133 Second Ave., LLC, 2014 NY Slip Op. 50064(U), refusing to dismiss a claim for breach of the duty of good faith and fair dealing. Among the many claims brought by the plaintiff that the... Read more »

Posted: February 3, 2014

Arbitration Clause in E-Mailed Terms and Conditions to Trading Account Agreement Not Sufficient to Bind Parties to Arbitration

On January 30, 2014, the First Department issued a decision in Basis Yield Alpha Fund (Master) v. Goldman Sachs Group, Inc., 2014 NY Slip Op. 00587, affirming a trial court’s refusal to compel arbitration. In Basis Yield Alpha Fund, the defendant moved to compel arbitration based on a “document entitled ‘General Terms and Conditions’ that... Read more »

Posted: February 2, 2014

RMBS Planitiff Moves for Leave to Appeal to Court of Appeals

On December 23, 2013, we blogged about the First Department’s decision in ACE Sec. Corp. v. DB Structured Prods., Inc., 2013 NY Slip Op. 08517, which dismissed a mortgage-backed securities lawsuit as barred by the failure both to give the contractually-required notice and an opportunity to cure and to bring suit before the end of... Read more »

Posted: January 25, 2014

Countersigned Letter is an Enforceable Contract Even Though Parties Contemplated Later Execution of a Formal Agreement

On January 16, 2014, Justice Bransten of the New York County Commercial Division issued a decision in Noryb Ventures v. Mankovsky, 2014 NY Slip Op. 30087(U), finding a countersigned letter to be an enforceable contract notwithstanding that it explicitly envisioned a later, more formal, agreement. In Noryb Ventures, the court denied the defendants’ motion for summary judgment on... Read more »

Posted: January 21, 2014

Condominium Owners not Third-Party Beneficiaries of Contract Between Sponsor and Architect

On January 6, 2014, Justice Demarest of the Kings County Commercial Division issued a decision in Board of Managers of the 125 North 10th Condominium v. 125 North 10, LLC, 2014 NY Slip Op. 50035(U), dismissing a claim by condominium owners for breach of a contract between the building sponsor and an architect. In Board... Read more »

Posted: January 16, 2014

Contract Claim Dismissed For Failure to Plead Non-Speculative Damages

On January 2, 2014, Justice Kornreich of the New York County Commercial Division issued a decision in Saxon Technologies, LLC v. Wesley Clover Solutions-North America, Inc., 2014 NY Slip Op. 30002(U), dismissing a breach of contract claim for failure adequately to plead damages. In Saxon Technologies, the plaintiff’s allegations included that the defendant had breached... Read more »

Posted: January 15, 2014

New York Choice of Law Provision Does Not Preclude Massachusetts Statutory Claim

On December 11, 2013, Justice Walker of the 8th Judicial District Commercial Division issued a decision in Melia v. Zenhire, Inc., 2013 NY Slip Op. 52254(U), addressing the intersection between a choice-of-law clause, a choice-of-forum clause, and a statutory cause of action. In Melia, the plaintiff signed an employment agreement with defendants that provided for... Read more »

Posted: January 11, 2014

No At Issue Waiver of Privilege When Party Chooses Not to Use Privileged Documents in Litigation

On December 30, 2013, Justice Kornreich of the New York County Commercial Division issued a decision in Old Republic Insurance Co. v. United National Insurance Co., 2013 NY Slip Op. 33423(U), discussing the “at issue” waiver doctrine. In Old Republic, the defendant moved for “the production of attorney communications” relevant to the oral contract that the... Read more »